This judgment will dispose of Criminal Appeal No. 1586 of 2001 filed by Abdul Wajid, appellant who was convicted and sentenced by learned Magistrate Section 30, Mianwali vide judgment dated 15.9.2001 as under:-- Seven years RI u/S 336 PPC and to pay arsh u/S. 337-B PPC. Daman of Rs. 50,000/- was also ordered to be paid. In case of nonpayment of amount of arsh and, daman, the appellant was to remain in jail. The benefit of Section 382-B, Cr.P.C. was however, extended in favour of the convict appellant.
2. Criminal Revision No. 868 of 2001 filed by the complainant for enhancement of sentence of the convict shall also be disposed of through this single judgment.
3. Briefly stated the facts of the case are that as a result of three pistol shots fired by Abdul Wajid, accused on 2.5.1996 at about 10.30 a.m. Muhammad Ishaq was injured.
4. The investigation of the case was conducted by Inspector Naveed Anwar who arrested the accused-appellant on 28.8.1999 alongwith a pistol which was secured vide memo Ex. PF.
Investigation was also partially conducted by Muhammad - Afzal SI, PW.9. After completion of the investigation, the accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses in all. Statement of the accused was recorded u/S. 342 Cr.P.C. in which he pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Learned counsel for the appellant at the very outset submits that no charge was framed by the predecessor trial Magistrate and that when the successor came to know and that too after completion of evidence of the prosecution, he framed the charge by passing a detailed order dated 13.9.2001 and on the same day recorded statement of the accused u/S. 342 Cr.P.C. and then recorded the conviction. Further submits that charge having not been framed, the whole trial stands vitiated and that even after framing the charge at the stage of conclusion of prosecution evidence, the learned trial Court did not record separate statement of the accused asking accused whether he would rely on the statements of the PWs recorded prior to framing of the charge or the PWs be re summoned again.
7. Learned counsel for the State assisted by learned counsel for the complainant has no cavil to the preposition canvassed by learned counsel for the appellant.
8. Admittedly, no charge was framed by the trial Court before recording of prosecution evidence and it was framed by the successor trial Court and that too at the stage when evidence of the prosecution was finished and it is also an admitted position on record that no separate statement of the accused was recorded after framing of the charge to the effect whether the accused would rely on the statements of the PWs recorded prior to framing of the charge or the Pws be resummoned. This being the admitted position on record, the case is remanded to the trial Court for fresh trial and the matter will proceed from the stage after framing the charge. The appellant shall remain in jail till decision of the trial Court.
Before parting with this judgment, I direct the Registrar of this Court to take departmental as well as legal action against the Magistrate who proceeded with trial of the case without framing of the charge as he is responsible for all this delay spreading over seven years because the occurrence had taken place on 2.5.1996 and the charge was framed on 13.9.2001 and the impugned judgment was pronounced on 15.9.2001. It seems that even the successor trial Magistrate was not aware of framing of the charge till the close of the prosecution case.
The learned Magistrate who passed the impugned judgment too did not bother to see the file with open eyes rather proceeded with the matter, recorded evidence of the prosecution and it was only on 13.9.2001 that he framed the charge and did not record separate statement of the accused.
Appropriate action shall also be taken against Mr. Amjad Ali Shah, Magistrate Section 30.
The record of the case shall be sent to the incumbent of the office within a week and the Presiding Officer shall decide the case within three months from the day of receipt of the record. A report in this regard shall be submitted to this Court.
With above observations and directions, the appeal filed by the convict appellant and the revision filed by the complainant are disposed of.